ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS: 03-CV-244790CM2
03-CV-248513CM2

DATE: 20140212

B E T W E E N:

Nathan Benson

Plaintiff

• and -

Andrzej Cichorczyk, David Dick, City of Toronto, and Her Majesty the Queen in Right of Ontario as Represented by the Solicitor General

Defendants

AND BETWEEN:

Gary Lee Boomer, Jason Junior Colson and Wayne John Kennedy

Plaintiffs

• and -

Andrzej Cichorczyk, David Dick, City of Toronto, and Her Majesty the Queen in Right of Ontario as Represented by the Solicitor General

Defendants

Richard Levin,
for the Plaintiff

Doug Smith & Kathryn Shani,
for the Defendants

Richard Lebkowski & Jae Cho,
for the Plaintiff Gary Boomer

HEARD: November 18–27, 2013

WHITAKER J.:

Introduction

1At the outset of the hearing I disclosed a potential conflict with the defendant. The parties agreed to waive any objection and were content to have me adjudicate this matter. This is judgment following trial.

2This dispute arises from a motor vehicle collision on November 13, 2002. The plaintiffs were prisoner passengers in a transport vehicle in the custody and control of Toronto Police Services (“TPS”).

3The plaintiffs were being transported from downtown Toronto to the Metro West Detention Centre.

4The plaintiffs each suffered injuries.

5The plaintiffs brought this action against the defendants and two other parties.

6The plaintiffs have settled their dispute with the two other parties.

7The plaintiffs have received in the settlement what they consider and state to be appropriate compensatory damages.

8It is agreed the only issue remaining in dispute is whether the plaintiffs are entitled to punitive damages against the TPS.

9For reasons which follow, the plaintiffs are not entitled to punitive damages. The action is dismissed.

Overview

10Most of the facts are not in dispute.

11On the evening of November 13, 2002, the plaintiffs were transported in custody from the Courthouse at 361 University Avenue in Toronto to Metro West Detention Centre.

12The vehicle used in this transport was known as “Court 14”. In slow westbound traffic on Lakeshore Boulevard, Court 14 was struck from behind by another vehicle.

13There were about a dozen prisoners in the vehicle at the time of the collision.

14Immediately after impact, most of the prisoners were thrown together on the floor of the vehicle.

15Many prisoners claimed to have suffered soft tissue injuries. All were transported to hospital and received medical assistance before being moved to a secure facility.

16There are no allegations concerning the manner in which the prisoners were dealt with during and following the collision.

17Court 14 was made to order by an Ontario company according to specifications established by the TPS.

18TPS has a number of identical vehicles.

19TPS has a very large volume of prisoner transport. TPS makes on average, one prisoner transport trip every three minutes.

20At the time of construction, the design features of vehicle Court 14 were considered to be “state of the art”. Identical vehicles were and still are used by TPS, other police services in Ontario, Canada and the United States.

21The design of this vehicle is considered by some to reflect industry standards.

22At the joint request of the parties and in their presence, I took a view of the same model of vehicle as Court 14 while the vehicle was parked on the street outside of the Courthouse.

23I heard evidence from the manufacturer of the vehicle. I was told the particular specifications including what might be regarded as “safety features” are installed according the requests of customers.

24These vehicles did not have seat belts or any type of restraint system that might protect occupants from being thrown around in the vehicle in response to vehicle motion, acceleration and change of direction or speed.

25The surfaces of the vehicle interior were uniformly smooth sheet metal. There was no padded seating which might create friction to reduce the degree of potential body movement inside the vehicle.

26There is very little external visibility from within the vehicle. It is quite difficult to see anything outside the vehicle from the inside. I was told that this obliteration of view was in response to an incident where a prisoner exposed himself to a person outside of the vehicle.

27When seated, the ceiling is low so that prisoners of average height will hit the ceiling quite easily with their head by any abrupt movement of the vehicle.

28There is no intercom system to permit passengers to communicate easily with TPS officers who sit in a separate and secure area in the front of the vehicle. In the absence of an intercom, prisoners communicate with officers by yelling for the most part.

29There is no closed circuit video camera that would permit the officers to observe the passengers.

30The TPS claims that it is unsafe to have restraint systems and padding on seats for reasons of prisoner and officer safety. TPS suggests that seat upholstery would make it difficult to sterilize the interior which is required from time to time and done by spraying water into the interior. I was also told that padded seating would permit contraband (weapons and drugs) to be stored and hidden in the padding itself. Seat belt buckles could be dismantled and used to make weapons that could then be smuggled into prison.

31I heard expert evidence called by the plaintiffs which supported the view that these vehicles could be built with improved safety features such as seat padding, windows, seat belts, improved internal lighting, intercom and video equipment. The expert was not able to speak to the issue of whether these features might result in an increase in prisoner-on-prisoner or prisoner- on-staff assaults and injury.

32The expert has not viewed the vehicle nor spoken to anyone who has driven it. The expert has not conducted any study of this vehicle for purposes of determining how safety could be enhanced.

33Regulation 613 of the Highway Traffic Act, RSO 1990, c H.8 permits seat belts to be removed from police vehicles.

34Seat belts are used in police cruisers and in some other types of transport vehicles used by the TPS. There have been no incidents where seat belts in cruisers or other transport vehicles have resulted in prisoner-on-prisoner or prisoner-on-officer injuries or altercations.

35TPS concedes that the design features proposed by the expert witness which include seat belts, seat padding, lighting, intercom, video monitor and external windows, might improve safety if looked at in isolation without considering the effect on inmate violence. The TPS has not studied these issues, however, relies on real and practical “police experience”.

36The TPS notes the features of the current fleet of vehicles are “industry standard”.

37Officers who drive these vehicles are provided with training before being assigned to this duty.

The Issues to be Decided

38The issue to determine is whether the plaintiffs are entitled to punitive damages and if so, what is the appropriate quantum.

The Positions of the Parties

39The TPS considers vehicle safety to include precautions to protect against prisoner-on-prisoner and prisoner-on-officer violence. The ability to reduce and protect against prisoner violence must be understood to be an inseparable component of prisoner transport safety.

40The TPS agrees that if prisoner violence is disregarded, some of the proposed features might enhance prisoner safety.

41The TPS suggests that the appropriate test for punitive damages has not been met and the action should be dismissed.

42The plaintiffs take the position that the proposed safety features are essential for prisoner safety and there is no evidence before me to confirm the reliability of the TPS’ view that these features will increase the risk of prisoner violence.

43The plaintiffs say that the test for punitive damages has been satisfied.

Discussion – Safety Concerns

44The factual basis for the plaintiffs’ case is that modifications could be made to the internal features of the transport vehicles which would increase passenger safety. Further, that there is no evidentiary basis for concluding that the introduction of these features and modifications would permit or result in an increased volume of prisoner instigated violence.

45The TPS disagrees and suggests the plaintiffs’ proposed design modifications would result in increased prisoner violence. The TPS posits that existing design features are an appropriate balance of harm and risk to passengers (and officers). In other words, vehicle safety must reflect elements of general passenger safety as well as specific concerns about inmate violence.

46It must be remembered that the investigation here is not the issue of the best and most desirable form of prisoner transport, but rather the plaintiffs’ entitlement to punitive damages because of the conduct of the TPS. The use by the TPS of Court 14 in 2002 is part of the TPS’ conduct to be scrutinized.

Punitive Damages

47In Vorvis v. Insurance Corporation of British Columbia, 1989 93 (SCC), [1989] 1 S.C.R. 1085, at paragraph 25, the Supreme Court of Canada considered the use of punitive damages, indicating there are three elements to decide – proof of actionable wrong, injuries and most importantly in this case, whether the conduct of the TPS is deserving of condemnation or sanction due to its malicious, reprehensible or vindictive nature.

48In Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 2002 SCC 18, again before the Supreme Court of Canada and beginning in paragraph 67, Justice Binnie identified a series of factors to consider when faced with an application for punitive damages. Some of these include:

• punitive damages are the exception and not the rule
• punitive damages will largely be restricted to intentional torts
• punitive damages are only appropriate where there has been high-handed, malicious, arbitrary or reprehensible conduct
• if awarded, should be proportionate to the circumstances of the wrongs
• should be awarded with regard to other fines or penalties
• should be awarded when other penalties are inadequate
• the purpose is not to compensate the plaintiff
• the purpose is deterrence and to denounce

49The Court of Appeal has recently in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, applied the factors in Whiten. Those points which are particularly of relevance here are twofold: first, that the damages must be proportionate to the misconduct and harm, the vulnerability of the plaintiff and the significance of other fines and penalties suffered for the conduct; and secondly, that punitive damages may be appropriate where compensatory damages are insufficient to accomplish the objectives of retribution – including the community’s collective condemnation of the conduct.

50In my view, the conduct of the TPS in taking responsibility for maintaining the design of the Court 14 and other comparable vehicles is not the type of conduct which should appropriately attract punitive damages. There is no conduct here on the part of TPS which is reprehensible or should draw the condemnation of the community.

51The evidence in its totality reveals that there are two discrete “schools of thought” in policing when it comes to prisoner transport – those who discount the significance of prisoner violence in favour of belts and upholstery, and those who from “police experience” see prisoner violence as the primary concern in transport and guard against it as a first priority.

52There is no doubt that the TPS and its officers fall into the latter camp.

53Having sat through the evidence I can fairly say that both views are rationally sustainable on the facts and expert evidence. These are the types of issues, views and opinions upon which reasonable people may differ.

54I should make it clear that I am not in these observations and conclusions endorsing the positions taken by either “side” in the debate over prisoner transport safety, but am rather finding that there is no basis for community sanction here – which is really at the heart of punitive damages.

55With respect to the two plaintiffs, while I can appreciate their commitment to improve the conditions of prisoner safety, I must conclude that this is not a case where punitive damages are the appropriate mechanism to achieve these goals.

56Having considered the guidance of the Supreme Court in Vorvis and Whiten – and as refined by the Court of Appeal in Pate Estate – there is simply no basis upon which to conclude that the conduct of the TPS should attract sanction and denunciation.

Outcome

57The action is dismissed.

58Written cost submissions no longer than three pages may be made within two weeks.

WHITAKER, J.

DATE: February 12, 2014

COURT FILE NOS: 03-CV-244790CM2
03-CV-248513CM2